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Johnson v. Burrell

Although the propounder of a will had a confidential relationship with the decedent and was not the natural object of his bounty, the presumption of undue influence did not arise because the evidence did not show that she actively participated in the planning, preparation or execution of the will, but merely contacted the attorney at the decedent's request.

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In May 2009, Hubert H. Johnson made a new will, in which he devised his most substantial asset—a pecan farm of 350 acres in Dougherty County—to Donna Ellis Burrell. He died a few weeks later, and Donna promptly filed a petition to probate the will that Hubert made in May 2009. Two of his kin filed caveats, however, alleging that Donna had exerted undue influence upon Hubert with respect to the making of that will, and alleging that Donna had made false statements to Hubert, upon which he relied in making the will. As to the caveats, the probate court awarded summary judgment to Donna, and the caveators appeal. We see no reversible error and affirm.

1. The record shows that Hubert was married to Ruby Johnson, and he adopted her son, Henry Johnson. As early as 1992, however, Henry was estranged from Hubert and Ruby, and they did not name him as a beneficiary in any of the several wills that they made in the years that followed. Hubert and Ruby were close, however, to her great niece, Kendall Hash. After Ruby died, Hubert made a will in 2001 that left his pecan farm to Hash. He also made wills in August 2007 and June 2008 that left the farm to Hash. Henry and Hash are the caveators in this case.

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